Mental Capacity Bill

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
66

      (3)
In sections 48 and 49 (mental health jurisdiction), for each reference to the
judge having jurisdiction under Part 7 of the Mental Health Act substitute a
reference to the Court of Protection.
Improvement of Land Act 1864 (c. 114)
2
In section 68 of the Improvement of Land Act 1864 (c. 114) (apportionment
5
of rentcharges)—
(a)
for “, curator, or receiver of” substitute “or curator of, or a deputy
with powers in relation to property and affairs appointed by the
Court of Protection for,”, and
(b)
for “or patient within the meaning of Part VII of the Mental Health
10
Act 1983” substitute “person who lacks capacity (within the meaning
of the Mental Capacity Act 2004) to receive the notice”.
Trustee Act 1925 (c. 19)
3     (1)
The Trustee Act 1925 (c. 19) is amended as follows.
      (2)
In section 36 (appointment of new trustee)—
15
(a)
in subsection (6C), for the words from “a power of attorney” to the
end, substitute “an enduring power of attorney or lasting power of
attorney registered under the Mental Capacity Act 2004”, and
(b)
in subsection (9)—
(i)
for the words from “is incapable” to “exercising” substitute
20
“lacks capacity to exercise”, and
(ii)
for the words from “the authority” to the end substitute “the
Court of Protection”.
      (3)
In section 41(1) (power of court to appoint new trustee) for the words from
“is incapable” to “exercising” substitute “lacks capacity to exercise”.
25
      (4)
In section 54 (mental health jurisdiction)—
(a)
for subsection (1) substitute—
“(1)
Subject to subsection (2), the Court of Protection may not
make an order, or give a direction or authority, in relation to
a person who lacks capacity to exercise his functions as
30
trustee, if the High Court may make an order to that effect
under this Act.”,
(b)
in subsection (2)—
(i)
for the words from the beginning to “of a receiver” substitute
“Where a person lacks capacity to exercise his functions as a
35
trustee and a deputy is appointed for him by the Court of
Protection or an application for the appointment of a
deputy”,
(ii)
for “the said authority”, in each place, substitute “the Court
of Protection”, and
40
(iii)
for “the patient”, in each place, substitute “the person
concerned”, and
(c)
omit subsection (3).
      (5)
In section 55 (order made on particular allegation to be conclusive evidence
of it)—
45

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
67

(a)
for the words from “Part VII” to “Northern Ireland” substitute
“sections 15 to 20 of the Mental Capacity Act 2004 or any
corresponding provisions having effect in Northern Ireland”, and
(b)
for paragraph (a) substitute—
“(a)
that a trustee or mortgagee lacks capacity in relation
5
to the matter in question;”.
      (6)
In section 68 (definitions), at the end add—
“(3)
Any reference in this Act to a person who lacks capacity in relation
to a matter is to a person—
(a)
who lacks capacity within the meaning of the Mental
10
Capacity Act 2004 in relation to that matter, or
(b)
in respect of whom the powers conferred by section 46 of that
Act are exercisable and have been exercised in relation to that
matter.”.
Law of Property Act 1925 (c. 20)
15
4     (1)
The Law of Property Act 1925 (c. 20) is amended as follows.
      (2)
In section 22 (conveyances on behalf of persons who lack capacity)—
(a)
in subsection (1)—
(i)
for the words from “in a person suffering” to “is acting”
substitute “, either solely or jointly with any other person or
20
persons, in a person lacking capacity (within the meaning of
the Mental Capacity Act 2004) to convey or create a legal
estate, a deputy appointed for him by the Court of Protection
or (if no deputy is appointed”, and
(ii)
for “the authority having jurisdiction under Part VII of the
25
Mental Health Act 1983” substitute “the Court of Protection”,
(b)
in subsection (2), for “is incapable, by reason of mental disorder, of
exercising” substitute “lacks capacity (within the meaning of that
Act) to exercise”, and
(c)
in subsection (3), for the words from “an enduring power” to the end
30
substitute “an enduring power of attorney or lasting power of
attorney (within the meaning of the 2004 Act) is entitled to act for the
trustee who lacks capacity in relation to the dealing.”.
      (3)
In section 205 (interpretation), omit paragraph (xiii).
Administration of Estates Act 1925 (c. 23)
35
5     (1)
The Administration of Estates Act 1925 (c. 23) is amended as follows.
      (2)
In section 41(1) (powers of personal representatives to appropriate), in the
proviso—
(a)
in paragraph (ii)—
(i)
for the words from “is incapable” to “the consent” substitute
40
“lacks capacity (within the meaning of the Mental Capacity
Act 2004) to give the consent, it”, and
(ii)
for “or receiver” substitute “or a person appointed as deputy
for him by the Court of Protection”, and
(b)
in paragraph (iv), for “no receiver is acting for a person suffering
45
from mental disorder” substitute “no deputy is appointed for a
person who lacks capacity to consent”.

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
68

      (3)
Omit section 55(1)(viii) (definitions of “person of unsound mind” and
“defective”).
National Assistance Act 1948 (c. 29)
6
In section 49 of the National Assistance Act 1948 (c. 29) (expenses of council
officers acting for persons who lack capacity)—
5
(a)
for the words from “applies” to “affairs of a patient” substitute
“applies for appointment by the Court of Protection as a deputy”,
and
(b)
for “such functions” substitute “his functions as deputy”.
U.S.A. Veterans’ Pensions (Administration) Act 1949 (c. 45)
10
7
In section 1 of the U.S.A. Veterans’ Pensions (Administration) Act 1949
(c. 45) (administration of pensions)—
(a)
in subsection (4), omit the words from “or for whom” to “1983”, and
(b)
after subsection (4), insert—
“(4A)
An agreement under subsection (1) is not to be made in
15
relation to a person who lacks capacity (within the meaning
of the Mental Capacity Act 2004) for the purposes of this Act
if—
(a)
there is a donee of an enduring power of attorney or
lasting power of attorney (within the meaning of the
20
2004 Act), or a deputy appointed for the person by the
Court of Protection, and
(b)
the donee or deputy has power in relation to the
person for the purposes of this Act.
(4B)
The proviso at the end of subsection (4) also applies in
25
relation to subsection (4A).”.
Intestates’ Estates Act 1952 (c. 64)
8
In Schedule 2 to the Intestates’ Estates Act 1952 (c. 64) (rights of surviving
spouse or civil partner in relation to home), for paragraph 6(1) substitute—
     “(1)
Where the surviving spouse or civil partner lacks capacity (within
30
the meaning of the Mental Capacity Act 2004) to make a
requirement or give a consent under this Schedule, the
requirement or consent may be made or given by a deputy
appointed by the Court of Protection with power in that respect or,
if no deputy has that power, by that court.”.
35
Variation of Trusts Act 1958 (c. 53)
9
In section 1 of the Variation of Trusts Act 1958 (c. 53) (jurisdiction of courts
to vary trusts)—
(a)
in subsection (3), for the words from “shall be determined” to the end
substitute “who lacks capacity (within the meaning of the Mental
40
Capacity Act 2004) to give his assent is to be determined by the Court
of Protection”, and
(b)
in subsection (6), for the words from “the authority” to the end
substitute “the Court of Protection”.

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
69

Administration of Justice Act 1960 (c. 65)
10
In section 12(1)(b) of the Administration of Justice Act 1960 (c. 65) (contempt
of court to publish information about proceedings in private relating to
persons with incapacity) for the words from “under Part VIII” to “that Act”
substitute “under the Mental Capacity Act 2004, or under any provision of
5
the Mental Health Act 1983”.
Industrial and Provident Societies Act 1965 (c. 12)
11
In section 26 of the Industrial and Provident Societies Act 1965 (c. 12)
(payments for mentally incapable people), for subsection (2) substitute—
“(2)
Subsection (1) does not apply where the member or person
10
concerned lacks capacity (within the meaning of the Mental Capacity
Act 2004) for the purposes of this Act and—
(a)
there is a donee of an enduring power of attorney or lasting
power of attorney (within the meaning of the 2004 Act), or a
deputy appointed for the member or person by the Court of
15
Protection, and
(b)
the donee or deputy has power in relation to the member or
person for the purposes of this Act.”.
Compulsory Purchase Act 1965 (c. 56)
12
In Schedule 1 to the Compulsory Purchase Act 1965 (c. 56) (persons without
20
power to sell their interests), for paragraph 1(2)(b) substitute—
“(b)
do not have effect in relation to a person who lacks
capacity (within the meaning of the Mental Capacity Act
2004) for the purposes of this Act if—
(i)
there is a donee of an enduring power of attorney
25
or lasting power of attorney (within the meaning of
the 2004 Act), or a deputy appointed for the person
by the Court of Protection, and
(ii)
the donee or deputy has power in relation to the
person for the purposes of this Act.”.
30
Leasehold Reform Act 1967 (c. 88)
13    (1)
For section 26(2) of the Leasehold Reform Act 1967 (c. 88) (landlord lacking
capacity) substitute—
“(2)
Where a landlord lacks capacity (within the meaning of the Mental
Capacity Act 2004) to exercise his functions as a landlord, those
35
functions are to be exercised—
(a)
by a donee of an enduring power of attorney or lasting power
of attorney (within the meaning of the 2004 Act), or a deputy
appointed for him by the Court of Protection, with power to
exercise those functions, or
40
(b)
if no donee or deputy has that power, by a person authorised
in that respect by that court.”.
      (2)
That amendment does not affect any proceedings pending at the
commencement of this paragraph in which a receiver or a person authorised
under Part 7 of the Mental Health Act is acting on behalf of the landlord.
45

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
70

Medicines Act 1968 (c. 67)
14
In section 72 of the Medicines Act 1968 (c. 67) (pharmacist lacking
capacity)—
(a)
in subsection (1)(c), for the words from “a receiver” to “1959”
substitute “he becomes a person who lacks capacity (within the
5
meaning of the Mental Capacity Act 2004) to carry on the business
and there is a donee of an enduring power of attorney or lasting
power of attorney (within the meaning of that Act) or a deputy is
appointed for him by the Court of Protection”,
(b)
in subsection (3)(d)—
10
(i)
for “receiver” substitute “deputy”, and
(ii)
after “guardian” insert “or from the date of registration of the
instrument appointing the donee”, and
(c)
in subsection (4)(c), for “receiver” substitute “donee, deputy”.
Family Law Reform Act 1969 (c. 46)
15
15
For section 21(4) of the Family Law Reform Act 1969 (c. 46) (consent required
for taking of bodily sample from person lacking capacity), substitute—
“(4)
A bodily sample may be taken from a person who lacks capacity
(within the meaning of the Mental Capacity Act 2004) to give his
consent, if consent is given by the court giving the direction under
20
section 20 or by—
(a)
a donee of an enduring power of attorney or lasting power of
attorney (within the meaning of that Act), or
(b)
a deputy appointed, or any other person authorised, by the
Court of Protection,
25

with power in that respect.”.
Local Authority Social Services Act 1970 (c. 42)
16
In Schedule 1 to the Local Authority Social Services Act 1970 (c. 42)
(enactments conferring functions assigned to social services committee), at
the end, insert—
30

“Mental Capacity Act 2004

  Section 37
Seeking advice from independent

consultee before providing

accommodation for person

lacking capacity.

35

  Section 47
Reports in proceedings.”.

Courts Act 1971 (c. 23)
17
In Part 1A of Schedule 1 to the Courts Act 1971 (c. 23) (office-holders eligible
for appointment as circuit judges), omit the reference to a Master of the
Court of Protection.
40

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
71

Matrimonial Causes Act 1973 (c. 18)
18
In section 40 of the Matrimonial Causes Act 1973 (c. 18) (payments to person
who lacks capacity) (which becomes subsection (1))—
(a)
for the words from “is incapable” to “affairs” substitute “(“P”) lacks
capacity (within the meaning of the Mental Capacity Act 2004) in
5
relation to the provisions of the order”,
(b)
for “that person under Part VIII of that Act” substitute “P under that
Act”,
(c)
for the words from “such persons” to the end substitute “such person
(“D”) as it may direct”, and
10
(d)
at the end insert—
“(2)
In carrying out any functions of his in relation to an order
made under subsection (1), D must act in P’s best interests
(within the meaning of that Act).”.
Juries Act 1974 (c. 24)
15
19
In Schedule 1 to the Juries Act 1974 (c. 23) (disqualification for jury service),
for paragraph 3 substitute—
“3
A person who lacks capacity, within the meaning of the Mental
Capacity Act 2004, to serve as a juror.”.
Consumer Credit Act 1974 (c. 39)
20
20
For section 37(1)(c) of the Consumer Credit Act 1974 (c. 39) (termination of
consumer credit licence if holder lacks capacity) substitute—
“(c)
becomes a person who lacks capacity (within the meaning of
the Mental Capacity Act 2004) to carry on the activities
covered by the licence.”.
25
Solicitors Act 1974 (c. 47)
21    (1)
The Solicitors Act 1974 (c. 47) is amended as follows.
      (2)
For section 12(1)(j) (application for practising certificate by solicitor lacking
capacity) substitute—
“(j)
while he lacks capacity (within the meaning of the Mental
30
Capacity Act 2004) to act as a solicitor and powers under
sections 15 to 20 or section 46 of that Act are exercisable in
relation to him;”.
      (3)
In section 62(4) (contentious business agreements made by clients) for
paragraphs (c) and (d) substitute—
35
“(c)
as a deputy for him appointed by the Court of Protection with
powers in relation to his property and affairs, or
(d)
as another person authorised under that Act to act on his
behalf.”.
      (4)
In paragraph 1(1) of Schedule 1 (circumstances in which Law Society may
40
intervene in solicitor’s practice), for paragraph (f) substitute—
“(f)
a solicitor lacks capacity (within the meaning of the Mental
Capacity Act 2004) to act as a solicitor and powers under

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
72

sections 15 to 20 or section 46 of that Act are exercisable in
relation to him;”.
Limitation Act 1980 (c. 58)
22
In section 38 of the Limitation Act 1980 (c. 58) (interpretation) substitute—
(a)
in subsection (2) for “of unsound mind” substitute “lacks capacity
5
(within the meaning of the Mental Capacity Act 2004) to conduct
legal proceedings”, and
(b)
omit subsections (3) and (4).
Public Passenger Vehicles Act 1981 (c. 14)
23
In section 57(2)(c) of the Public Passenger Vehicles Act 1981 (c. 14)
10
(termination of public service vehicle licence if holder lacks capacity) for the
words from “becomes a patient” to “or” substitute “becomes a person who
lacks capacity (within the meaning of the Mental Capacity Act 2004) to use
a vehicle under the licence, or”.
Judicial Pensions Act 1981 (c. 20)
15
24
In Schedule 1 to the Judicial Pensions Act 1981 (c. 20) (pensions of Supreme
Court officers, etc.), in paragraph 1, omit the reference to a Master of the
Court of Protection except in the case of a person holding that office
immediately before the commencement of this paragraph or who had
previously retired from that office or died.
20
Supreme Court Act 1981 (c. 54)
25
In Schedule 2 to the Supreme Court Act 1981 (c. 54) (qualifications for
appointment to office in Supreme Court), omit paragraph 11 (Master of the
Court of Protection).
Mental Health Act 1983 (c. 20)
25
26    (1)
The Mental Health Act is amended as follows.
      (2)
In section 134(3) (cases where correspondence of detained patients may not
be withheld) for paragraph (b) substitute—
“(b)
any judge or officer of the Court of Protection, any of the
Court of Protection Visitors or any person asked by that
30
Court for a report under section 47 of the Mental Capacity
Act 2004 concerning the patient;”.
      (3)
In section 139 (protection for acts done in pursuance of 1983 Act), in
subsection (1), omit from “or in, or in pursuance” to “Part VII of this Act,”.
      (4)
In section 145(1) (interpretation), in the definition of “patient”, omit “(except
35
in Part VII of this Act)”.
      (5)
In section 146 (provisions having effect in Scotland), omit from “104(4)” to
“section),”.
      (6)
In section 147 (provisions having effect in Northern Ireland), omit from
“104(4)” to “section),”.
40